NEW DELHI: On February 3 this year, the Supreme Court issued an interim order restraining the Central and state governments from cutting down forest areas if there is no provision of compensatory land. This was the third consecutive order of the Supreme Court ever since the Forest (Conservation) Amendment Act, 2023 or FCA 2023 was enacted and challenged in the court. The amendment Act was meant to clarify and address concerns surrounding a swathe of deemed forests.
A deemed forest is defined as one that is not on the forest department’s records. However, several government records consider it as forest. About 1.99 lakh sq km of land are said to fall under the deemed forest category in the country.
The court's interim order came on a batch of petitions challenging the constitutionality of the FCA 2023, which the petitioners claim excludes nearly 1.99 lakh sq km of forest land from the definition of “forest”.
The petitions urged the court to strike down the amendments to save the forests.
The petitioners argued that the Supreme Court’s 1996 TN Godavarman judgment mandated the protection of forests regardless of classification or ownership or deemed forests. They cited the biennial ‘India State of Forest Report’, which takes all categories of forests into its sweep, including deemed forests. As per its latest report, tree cover accounts for 25.17% of the country’s geographical area.
A two-judge bench led by justices B R Gavai and K Vinod Chandran on February 3 directed the Centre to submit a status report in three weeks. The court said it will not allow any reduction in forest area without compensatory land being provided. The next hearing is scheduled for March 4.
This was not the first interim order on the validity of FCA 2023. On February 19, 2024, the then Chief Justice of India, D Y Chandrachud, directed the government to go by the 1996 TN Godavarman verdict.
"Pending the completion of exercise by the administration of the State Governments and Union Territories, under Rule 16, the principles which are elucidated in the judgment of this court in TN Godavarman must be continued to be observed. As a matter of fact, it is evident that Rule 16 includes within its ambit forest-like areas to be identified by the expert committee, unclassed forest lands and community forest lands. In the interregnum therefore, while being guided by the provisions of the statute and those contained in Rule 16, the State Governments and UT administrations shall peremptorily ensure compliance with the ambit of expression "forest" as explained in the decision in TN Godarman," the 2024 order of the top court said.
It also directed the government to provide full data on deemed forests collated by State Expert Committees (SEC) constituted after the Godavarman verdict. All those records shall be compiled and digitised by the ministry and uploaded on its official website by April 15, 2024, the bench ordered. (see box: What is TN Godavarman judgment)
Though the government complied with the directive, experts and petitioners questioned the data's reliability. “What we found in the report uploaded on the website was unsubstantiated and sketchy with no proper collated data,” said Prakriti Srivastava, former Indian Forest Service officer and one of the main writ petitioners against the FCA 2023.
Prerna Singh Bindra, a well-known environmentalist and another petitioner, doubted whether all states prepared the reports with due diligence. “The one report we had of Kerala and later of Assam are indicative that most reports are generic, without geographic locations, boundaries and extent. They are poor, shoddy, sloppy jobs; lacking ground truthing and cadastral surveys,” she charged.
Changing dynamics of forest governance
The Forest Conservation Act, 1980, amended and renamed as Van (Sanrakshan Evam Samvardhan) Act, 2023, drew criticism ever since it was in the draft stage.
Environmentalists and conservationists expressed concern over its intent. Six out of 31 members of a Joint Parliamentary Committee (JPC) constituted to examine the bill, filed dissent notes, raising alarm over the exemption given to a significant expanse of land in the proposed legislation.
The new law, they argued, changed the whole dynamics of forest governance, which could lead to severe forest loss in the coming days.
The amendments, they argued, diluted many conservation provisions, including the protection of deemed forests. Also, they gave abundant powers to the state governments to notify the rules and guidelines without prior permission from the Central government for clearing any unclassified or deemed forest.
The new law, the activists charged, favours diversion of forest land for non-forestry purposes in lieu of money for afforestation instead of the land-for-land arrangements under the previous law. The old law was clear on this — if the government diverts a piece of land to an agency for non-forestry purposes, then the agency should provide an equivalent piece of non-forest land for afforestation.
“It sounds like ‘blood money’ for our forest land and hugely damaging to the country’s forest,” said Srivastava. “We have enough money through different schemes like CAMPA or Green India Mission (GIM) for afforestation, which remains unspent,” she added.
Srivastava underscored another critical point in the legislation that could promote the error of double counting of the forest land. “Forest areas that are diverted for non-forest purposes like dams, canals or roads are lost forever, but they continue to be treated as forest land on record,” she pointed out.
Further, the amended law exempts the requirement of the forest department's clearance for the use of forest land for a number of non-forestry purposes. For example, it exempts the forest department's clearance to build defence establishments and public utilities on forest land within 100 km of the international border. Also on the exempted list is forest land alongside railways and roads and notified forest land up to 10 hectares for building security infrastructure. The waiver includes the establishment of zoo/safari and ecotourism facilities on such land.
“The new law promotes the commercialisation of Reserve Forests and irreversible disturbance to wildlife,” says Debadityo Sinha, a forest law expert.
Soon after its enactment, some retired Indian forest officials, environmentalists and activists feared it would destroy the country’s forest resources and the livelihoods of millions of people dependent on them.
They approached the court, demanding an interim stay of the guidelines and rules issued by MoEFCC, reinstatement of the Godavarman case judgment, which was being violated through the amendment, and examination of the SEC reports on documentation of deemed forest land prepared after the 1996 judgment.
Also, some voices of dissent from the South emerged against the Act's renaming from English to Sanskrit as Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980.
Threat to Forest Rights Act
The petitioners claim that the FCA 2023 amendment transgressed the landmark Forest Rights Act 2006 (FRA), which gives communities or forest dwellers rights over their habitation and natural resources to sustain their livelihood.
After writing off approximately 1.99 lakh sq km of forest areas from the purview of forest governance, the new law opened a window for government agencies to divert forest land for non-forestry purposes, the petitioners argued. Lakhs of forest dwellers, especially tribals, will lose their rights over their lands, which they got under the FRA 2006, they added.
However, there is no clear data on how much FRA-approved land is being given to forest dwellers located in deemed forests and recorded forests. But some anecdotal facts are interesting.
“In my research on 12 revenue villages in tribal areas of Odisha, which encompassed over 3,634 acres, I found only less than 3% of forest land in government’s record while the rest of the land was outside forest,” said Manohar Chauhan, an expert on the implementation of the FRA.
Taking a large swathe of land away from forest governance could create a direct confrontation between states and forest dwellers. “The new law will violate FRA by undermining the power of the Gram Sabha (village council) and trigger conflict between state government and tribals,” said Tushar Dash, another independent researcher on the FRA. He claimed that the previous laws had a better mechanism of checks and balances that empowered the locals.
Another charge against the MoEFCC is that it did not seek the views of the National Commission for Scheduled Castes and Scheduled Tribes (NSCST) during its consultation process for the FCA 2023. “It is mandatory to consult NSCST if any laws impact tribal or forest dwellers,” said Ritwik Datta, a petitioner and founder of environment advocacy organisation, LIFE.
Findings the State of Forest Report, 2023
As compared to assessment of 2021, there is an increase of 1,445 sq km in the forest and tree cover of the country
Top four states showing maximum increase in forest and tree cover are Chhattisgarh (684 sq km) followed by Uttar Pradesh (559 sq km), Odisha (559 sq km) and Rajasthan (394 sq km)
Area wise top three states having largest forest cover are Madhya Pradesh (77,073 sq km) followed by Arunachal Pradesh (65,882 sq km) and Chhattisgarh (55,812 sq km)
In terms of percentage of forest cover as against the total geographical area, Lakshadweep (91.33%) has the highest forest cover followed by Mizoram (85.34%) and Andaman & Nicobar Island (81.62%)
19 states/UTs have over 33% of their geographical area under forest cover
Total growing stock of India’s forest and trees outside forests is estimated as 6,430 million cum, of which 4,479 million cum is inside the forests and 1,951 million cum outside the forest area
There is an increase of 262 million cum of total growing stock as compared to the previous assessment, which includes an increase of 91 million cum inside the forest and 171 million cum outside the forest area
What is the Godavarman judgment?
TN Godavarman Thirumulpad was a retired forest officer who filed a case in the Supreme Court of India to protect forests in 1995. His petition was against illegal timber operations in the Nilgiris, Tamil Nadu. The case is considered a major intervention in India’s environmental law enforcement and forest preservation history as the court ordered that the government go by the dictionary meaning of the term, forest.
Wide ambit
The landmark ruling in the Godavarman case on December 12, 1996 said the word forest must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term “forest land”, occurring in Section 2, will not only include “forest” as understood in the dictionary sense, but also any area recorded as forest in the government record irrespective of ownership.